HATCH v. CENTRAL SYDNEY AREA HEALTH SERVICE [1999] NSWCA 168

JUDGMENT 1 PRIESTLEY JA: Mr Hatch, the appellant, was admitted to Rozelle Hospital pursuant to the provisions of the Inebriates Act 1912 on 27 May 1992. He became an inmate of Ward 6, a locked ward and a self-contained building. Ward 6 had originally been used for adults with brain damage and then became part of the Drug and Alcohol Programme. In June 1992 it housed patients from both groups. On 26 June 1992 another inmate of Ward 6, Harry Christantopoulos, in a corridor on the ground floor, grabbed the appellant by the left arm, swung him around, and threw him into a brick wall, breaking his right hip. 2 The appellant brought an action in the District Court against Central Sydney Area Health Service, now the respondent in the appeal, which managed the Rozelle Hospital. The appellant's claim was for damages for his injury which he alleged was caused by the negligence of the respondent in failing to take reasonable care for his safety. 3 The trial of the action was heard by her Honour Acting District Court Judge Balla. In her reasons for dismissing the appellant's claim she noted that it had been based on the propositions that before the assault on the appellant it was known to the staff at the hospital that Harry Christantopoulos was likely to cause injury to another person, that he had on 3 June 1992 thrown a piano stool at the appellant, that the Hospital was under a duty to take positive steps to ensure the appellant was not injured and the Hospital should have transferred Harry Christantopoulos to Ward 18, another locked ward within the Hospital or increased the supervision of Harry Christantopoulos within Ward 6. The trial judge also noted that the respondent's answer was that its duty was to take reasonable care for the appellant's safety and that the steps suggested by the appellant were unreasonable. 4 Various factual issues were contested at the trial but it is unnecessary to give details of each of the different versions as most of the primary findings of fact were not challenged in the appeal. 5 The appellant's description of the assault upon him was accepted by the trial judge who found that it took place in the following circumstances. 6 There were two kitchens on the ground floor of Ward 6 on opposite sides of the corridor in which the appellant was assaulted. The appellant and another patient named Darryl had been given the job of using one of the kitchens for making tea for everybody of a night. On the night of 26 June 1992 the appellant and Darryl were preparing the tea in this kitchen. Harry Christantopoulos came in, opened the fridge and ate some of the nurses' food. The appellant spoke to him. He did not reply. When the tea was ready the appellant went down the corridor to the nurses' room but when no-one answered his knocking on the door he walked back along the corridor towards the kitchen. When he was about two metres from the kitchen door, Harry Christantopoulos came out from the kitchen on the other side of the corridor and committed the assault. The assault happened very quickly. The appellant had no forewarning or realisation of what Harry Christantopoulos was going to do. 7 The trial judge accepted that the Hospital was on notice of previously physically aggressive behaviour by Harry Christantopoulos both at other institutions and at the Hospital, including the piano stool incident. The action taken by the Hospital staff on that occasion was a ten minute banishment to a "seclusion room", an empty room within the ward. The trial judge's general finding about all this was that there was clear evidence that the Hospital was aware before the assault on the appellant, that Harry Christantopoulos could be violent on occasions; also, the evidence did not establish that his acts of violence had resulted in any significant injury to any person. She also concluded that the incident of the piano stool throwing did not put the Hospital on notice that Harry Christantopoulos had developed a personal antipathy to the appellant. 8 Within the appeal papers there is a transcript of the submissions made to the trial judge at the conclusion of the evidence. From these it appears that the principal case argued for the appellant at the trial was, as recorded by the trial judge, that the Hospital, being on notice of Harry Christantopoulos's violent tendencies and also being aware of his having thrown the piano stool at the appellant, should either have transferred him to Ward 18 or increased supervision of him within Ward 6. 9 The trial judge, as already indicated, did not accept the factual ingredient of the submission that the Hospital had reason to believe that Harry Christantopoulos had a particular antipathy to the appellant. This finding did not answer the more general submission in which the particular assertion had been included, and the trial judge went on to consider the content of the Hospital's duty to take reasonable care for the appellant's safety. 10 There had been detailed evidence before the court of consideration by the doctors separately in charge of Wards 18 and 6, and by others, of the most suitable placement of Harry Christantopoulos, whose particular problems resulting from his brain damage made him at times a difficult patient. He did offensive things as well as violent and aggressive ones, but was not recorded as having caused any significant physical harm before his assault on the appellant. The trial judge considered the material and found that the Hospital from at least 5 April 1991 was monitoring and reviewing Harry Christantopoulos's placement and had decided the most appropriate ward for him was Ward 6. She referred to the evidence that a psychogeriatric assessment group had considered, shortly after Harry Christantopoulos turned sixty-five in February 1992, whether he should be transferred to Ward 18. The group had decided that Ward 6 was the most appropriate ward. The trial judge did not accept the submission for the appellant that Harry Christantopoulos should have been moved to Ward 18. 11 The submission had been made on behalf of the appellant that the fact that Harry Christantopoulos had been moved to Ward 18 after the assault was evidence that the Hospital realised that such a transfer should have taken place earlier. She did not accept this submission because she thought the transfer had been made following changes in circumstances not connected with the assault. 12 The trial judge then dealt with the argument that the Hospital had been under a duty to provide greater supervision for Harry Christantopoulos. The argument had not been specific about the extent or nature of the supervision which it was claimed should have been provided. No expert evidence had been given on the subject. The trial judge had difficulty in seeing how greater supervision would have prevented the particular assault. She referred to the appellant's detailed description of the incident as being unprovoked and as having occurred very quickly. She said she did not accept the argument, because of the absence of expert evidence, the absence of a clear causal link between the alleged failure and the injury, and the failure by the appellant to show that Harry Christantopoulos was more violent than other patients in Ward 6. 13 She also referred to a suggestion made in the course of the hearing, which she did not accept, that consideration should have been given to the seclusion of Harry Christantopoulos. Her reasons for not accepting this suggestion were that there was no evidence to suggest any accommodation was available in the Hospital for prolonged periods of seclusion and there was evidence also that proper methods of treatment of such patients disapproved of such treatment. These seem to me to be sound reasons. 14 The trial judge added that in connection with the argument of the need for additional supervision that there had been evidence from the respondent that the cost of providing an additional nurse would be substantial and would have led to reduced service elsewhere in the Hospital. 15 For the foregoing reasons the trial judge considered negligence had not been established. 16 The trial judge also recorded that in cross-examining Dr Campbell (who at the time of the accident was the Hospital's Director of Clinical Services) counsel for the appellant had sought to raise the suggestion that Harry Christantopoulos should have been removed from the Hospital. Pursuit of this line was disallowed because it had not been raised in either the pleadings or the particulars of negligence, nor was any application made to amend them when cross-examination on the point was disallowed. 17 The trial judge ended her reasons with an assessment of the damages which she would have awarded to the appellant had he succeeded. She arrived at a figure of approximately $37,000. 18 Counsel for the appellant in making oral submissions to the court relied on written submissions earlier filed in accordance with the rules and, rather than simply repeating them, as unfortunately happens too often, followed the more useful course of using them as a springboard for emphasising and elaborating some aspects and for explanation, in response to questions from the court, of matters where further reference was needed to materials in the appeal papers. This method and the court's interest in learning more about various aspects of the system at the Hospital and the various systems that brought patients to it, resulted in the oral submissions proceeding in a somewhat different order from the written. I will state my own opinion about the totality of the submissions by dealing with them in the same order as in the written submissions. 19 The first section of the written submissions dealt with ground 2 in the notice of appeal which disputed the trial judge's conclusion that the appellant was not more at risk from possible aggression from Harry Christantopoulos than other patients in the Hospital. Part of the submission was that the trial judge had misunderstood what counsel's point had been; he had not been saying as the trial judge thought that Harry Christantopoulos developed a personal antipathy to the appellant but that the piano stool incident had put the Hospital on notice that Harry Christantopoulos was at that time behaving violently and that the appellant in particular was one of the people likely to be subject to the violent behaviour. It does not seem to me that this particular criticism carries the appellant very far. Even if it were valid, the trial judge nevertheless quite clearly accepted the general proposition put on behalf of the appellant concerning the knowledge of the Hospital of Harry Christantopoulos's potentially dangerous characteristics, and the personal antipathy comment had no adverse effect on the argument that was being put on behalf of the appellant, whose principal proposition was accepted, and argument properly considered. 20 The next section of the submissions dealt with ground 3 in the notice of appeal which was that the trial judge was mistaken in not accepting that Harry Christantopoulos should have been moved to Ward 18 before the assault. The submission repeated the arguments that had been put to and dealt with by the judge. I earlier mentioned her conclusion on this argument and that she had reached her conclusion after considering extensive Hospital records of discussion by the appropriate Hospital staff of the best way of handling their difficult patient Harry Christantopoulos. 21 After considering the same materials I reach the same conclusion as the trial judge. There was no ideal way of dealing with such patients, or indeed it seems with any of the patients in the Hospital; the Hospital had the difficult task of deciding on the most suitable way of dealing with each patient in light of the situation concerning all the other patients in the Hospital. There was not unanimity amongst the staff concerning the best placement for Harry Christantopoulos; this illustrates the difficulties the Hospital faced in looking after him together with all the other patients. 22 However the situation as it was being administered at the time of the assault seems to me to have been a reasonable response to the various obligations of the Hospital in regard to all its patients, in light of the resources then available. I do not think the material relied on by the appellant shows that the Hospital made any error of judgment in not moving Harry Christantopoulos to Ward 18 before 26 June 1992 in the factual situation as it then stood. 23 The next section of the written submissions dealt with ground 4 of the notice of appeal, headed "Failure to provide supervision" which is an accurate title for the substance of the submission. I earlier summarised the trial judge's reasons for not accepting the appellant's argument that the Hospital was in breach of its duty in not providing greater supervision for the activities of Harry Christantopoulos than it did. 24 In the submissions under this heading it was put that there was both a general systemic failure to provide adequate supervision and a particular failure on the night in question. In my opinion the reasons already summarised given by the trial judge for not accepting the systemic failure submission are generally sound and I will say no more than that I agree with her conclusion that it would not be right to hold the respondent to have been in breach of duty in the system it provided. 25 The trial judge did not deal in terms with the submission concerning particular failure of supervision. The transcript of the submissions made to her shows that the point was argued in quite sufficient detail. Probably the trial judge regarded parts of her reasons for rejecting the submission about inadequate general supervision as subsuming a negative answer to the particular lack of supervision also. She had said in regard to the general submission that she thought even an uninterrupted and vigilant system of surveillance would probably have failed to prevent the assault. That finding would be a sufficient answer to the submission concerning the particular failure on the night. 26 The submission about the failure of the system on the night was as follows. There was evidence that patients should not be in the kitchens unsupervised. The appellant and Darryl were in the kitchen getting the tea ready without supervision. The assault upon the appellant took place near the kitchen, about two metres away from the door, in the corridor. Had supervision been provided as it should have been, in accordance with the practice, the probabilities are that the assault would not have occurred. 27 In the way in which it was first put, this submission had some attraction, but on further examination that attraction became less. In the written submissions it had been said that Harry Christantopoulos was still in the area of the kitchen when the assault took place. However, as the court was taken through the relevant evidence it became relatively clear that at best it supported the view that patients should not be unsupervised within the kitchens themselves, for the reason that there were various features of the kitchen and its accessories which could be dangerous to unsupervised patients because of their various incapacities. The kitchens were kept locked when not in use in order to help ensure that they were not used by patients except under supervision. 28 Had the assault taken place in the kitchen more detailed consideration would have to be given to the submission. As it took place in the corridor however the breach of practice relied upon as the foundation of the submission has no application. In addition the causal problem referred to by the judge seems to me to be quite a real one. However, without expressing a final view on the causal point, it seems to me that the appellant's submission on this point fails, irrespective of other considerations, because it was not shown that at the time of the assault the system in operation required supervision of the area in which it took place. 29 A further argument advanced under this heading was that the trial judge should not have accepted the respondent's submission that the provision of one extra nurse would have led to a reduced service in another area of the Hospital. It was said that the evidence relied on was unsatisfactory. Granting that some of the criticism of the nature of the evidence was valid, it nevertheless seems to me to have been sufficient for the trial judge to have accepted its main point and to have acted on it accordingly. 30 The witness who gave this evidence agreed with counsel that the Hospital did not abrogate its responsibility to its patients simply because the government left it short of cash. True, but the Hospital had to manage as best it could with the finance it was provided it. Shortcomings in Hospital services caused by shortage of funds are not the fault of the Hospital; if anyone is to blame, it must be the fund provider, the government, which was not a party to the action. 31 I do not think this ground of appeal was made out. 32 The last section of the written submissions dealt with ground 5. Under this ground it was submitted that the trial judge had been wrong to refuse to allow cross-examination of Dr Campbell relating to the question of the admission of Harry Christantopoulos to the Hospital. Her Honour disallowed the cross-examination on the basis that the appellant should have pleaded or particularised the fact that the Hospital was entitled to and should have refused to accept Harry Christantopoulos as a voluntary admission. 33 For the appellant it was conceded that if the purpose of the cross-examination was to assist an argument that failure to refuse the admission of Harry Christantopoulos was itself an aspect of negligent conduct and thus an ingredient of the negligence claim, then the judge was right in disallowing the cross-examination. However, the appellant submitted that the cross-examination was directed towards getting information concerning the anticipated defence of the Hospital that, inter alia, greater supervision had not been possible because of the resources available to it. It was submitted that the lack of resources point was something for the respondent to prove, not for the appellant to take up in its case in chief. Thus the intention of the cross-examination was to obtain material to show the Hospital had admitted Harry Christantopoulos as a patient, not being under any obligation to do so, and so could not use the lack of overall resources to defend itself from an allegation that it should have exercised greater supervision. 34 Before considering the actual admissibility of the proposed questioning, I think it material to the efficacy of the ground of appeal to notice that once it is conceded that the appellant was not seeking to use the fact that Harry Christantopoulos was a voluntary admission as an aspect of the appellant's cause of action in negligence, and that the only relevance relied upon of the proposed cross-examination was as going to the resources defence question, then the only fact that was necessary was that of the voluntary admission itself. Questions going beyond that, as for example as to why the Hospital chose to admit that patient without being obliged to do so, or as to how much additional cost was caused by his admission, would be relevant not to the defence of resources being insufficient to provide greater supervision, but to a proposition which might be advanced that the Hospital had made a mistake in admitting the voluntary patient because in the state of its resources it should not have done so, which, being part of the negligence claim, should, as the judge held, have been pleaded or particularised. 35 Also to be noted is that had the cross-examination been permitted, it would not have had the effect as the appellant contended of preventing the respondent from relying on its funding situation as a factor to be taken into account in considering whether or not it had been in breach of duty against Mr Hatch, they would not be seeking to enforce that liability by judgment or enforcement of judgment. 36 Without deciding finally whether the cross-examination was formally inadmissible for the purpose contended for by counsel, I am nevertheless of the view that its rejection could not have been of sufficient importance to the appellant's case to make its wrongful rejection (if it were wrongful) a valid ground for upholding the appeal and ordering a new trial. 37 It follows from the conclusions I have reached that in my opinion the orders of the court should be that the appeals should be dismissed with costs. 38 MEAGHER JA: I agree with Priestley JA. 39 POWELL JA: I agree with Priestley JA.

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Judgment (14 paragraphs)

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